Merrick Garland, Stealth Nominee or True Moderate?

Since President Obama has nominated someone for the Supreme Court vacancy, it is tim we took a look at his judicial philosophy.  First, a little about him personally and professionally.  Judge Merrick Garland was born in Illinois, raised near Chicago, received his law degree from Harvard, one of the usual cast of schools from which SCOTUS members are typically drawn.  By all accounts Judge Merrick is really bland, but more on that below.  In 1997, he was appointed by President Clinton to the District of Columbia Circuit Court, one of the most important appeals courts in the United States due to the types of cases it often hears and the fact that many of its decisions make it to the Supreme Court.  Garland’s nomination was held up for a time, but he was finally confirmed by a pretty large margin.  Nineteen years later, he is Chief Judge of that court.

His supporters and President Obama have cast Judge Merrick as a moderate.  But we need to look a little more closely at that claim.  First, he is moderate compared to the possible candidates who were not nominated, for example, Loretta Lynch or Sri Srinivasan.  If the choice were to come down to Garland or a Hillary Clinton nominee, I would probably advise confirmation of Garland before anyone.  The decisions in which he has had a hand can be seen on Scotusblog in an article written back in 2010 when Judge Garland was on President Obama’s short list then (See http://www.scotusblog.com/2010/04/the-potential-nomination-of-merrick-garland/).

There are three areas in which Garland appears not to be as moderate as the media make him out to be.  First is his views on Second Amendment rights.  Scotusblog reported that

“Garland also notably voted in favor of en banc review of the D.C. Circuit’s decision invalidating the D.C. handgun ban, which the Supreme Court subsequently affirmed.  Garland did not take a formal position on the merits of the case.  But even if he had concluded that the statute was constitutional, that view of the case would have conformed to the widespread view that, under existing Supreme Court precedent, the Second Amendment did not confer a right to bear arms unconnected to service in a militia.  Parker v. District of Columbia, 478 F.3d 370 (2007).”

This statement makes Garland’s vote non-committal and merely procedural on gun rights.  But Judge Garland had earlier voted against Second Amendment rights in a 2000 case, NRA v. Attorney General, Janet Reno, in which he concurred with his liberal colleague Judge Tatel, in which the NRA challenged the Federal government’s establishment of a gun registry and background check system as an unconstitutional violation of Second Amendment rights.  On appeal, Tatel and Garland concluded that

“We see no basis for concluding that auditing the [National Instant Criminal Background Check System] would suddenly produce constitutional violations. Nor does the NRA identify any specific features of the auditing process that implicate constitutionally protected rights.” (NRA v. Attorney General)

Here it appears that Garland’s opposition in Second Amendment cases is substantive, possibly hostile.  But no matter what one thinks about background checks, and some conservatives do accept these, the fact is that most conservatives do not accept their constitutional validity and so they correctly view Garland as suspect on gun rights.

Possibly more important however is Garland’s generally favorable view toward government regulation and agency action.  His participation is such cases indicates a definitely deferential attitude to delegation and agency actions.  I hate to provide such a long quote from the Scotusblog analysis, but I will no doubt be criticized if I don’t do it:

Judge Garland has strong views favoring deference to agency decisionmakers.  In a dozen close cases in which the court divided, he sided with the agency every time.  FedEx Home Delivery v. NLRB, 563 F.3d 492 (2009) (Garland, J., dissenting) (dissenting from panel opinion overturning NLRB’s designation of workers as employees rather than contractors); Northeast Bev. Corp. v. NLRB, 554 F.3d 133 (2009) (Garland, J., dissenting) (dissenting from panel opinion overturning NLRB’s determination that certain conduct was protected under Section 7 of the NLRA); Financial Planning Ass’n v. SEC, 482 F.3d 481 (2007) (Garland, J., dissenting) (dissenting from panel opinion of Rogers, J., joined by Kavanaugh, J., invalidating SEC rule exempting broker-dealers from Investment Advisor Act in certain circumstances); Alpharma v. Leavitt, 460 F.3d 1 (2006) (per Garland, J.) (upholding FDA determination to approve drug, over partial dissent by Williams, S.J.); Secretary of Labor v. Excel Mining, 334 F.3d 1 (2003) (per Garland, J.) (joined by Rogers, J., upholding citations against mine operator issued by Secretary of Labor; over dissenting opinion of Sentelle, J.); Train v. Veneman, 310 F.3d 747 (2002) (joining opinion of Rogers, J., upholding Secretary of Agriculture’s implementation of subsidy program, over dissent of Sentelle, J.); American Corn Growers Ass’n v. EPA, 291 F.3d 1 (2002) (Garland, J., dissenting in part) (dissenting from majority opinion upholding industry challenge to part of EPA’s anti-haze regulations), after remand Util. Air Reg. Group v. EPA, 471 F.3d 1333 (2006) (Garland, J., on panel upholding regulations); Ross Stores v. NLRB, 234 F.3d 669 (2001) (Garland, J., dissenting in part) (dissenting from panel’s determination to overturn NLRB’s finding that employer unlawfully admonished employee for engaging in union solicitation);NRA v. Reno, 216 F.3d 122 (2000) (joining opinion of Tatel, J., upholding regulations implementing Brady Act; over dissent of Sentelle, J.); Iceland Steamship Co., Ltd. v. U.S. Dep’t of Army, 201 F.3d 451 (2000) (joining opinion of Sentelle, J., to uphold Army Contracting Officer’s decision; over dissent of Henderson, J.); American Trucking Ass’n v. U.S. E.P.A., 195 F.3d 4 (1999) (Tatel, J., dissenting from the denial of rehearing en banc) (Garland, J., joins dissent from denial of rehearing en banc of invalidation of EPA regulations under non-delegation doctrine), rev’d Whitman v. American Trucking Ass’ns, 531 U.S. 457 (2001); Appalachian Regional Healthcare, Inc. v. Shalala, 131 F.3d 1050 (1997) (joining opinion of Silberman, J., upholding interpretation of Social Security Act; over dissent by Sentelle, J.).

Notice that Garland often joins with Judge Tatel in opinions.  Each of these represents Garland’s basically liberal attitude toward governmental regulations.  Again, whether one agrees with that or not, it does make him suspect to conservatives.

Finally, Garland has ruled for the Federal government on Guantanamo detainee cases, but it is not clear he was doing anything more than following the case authority precedent set by the SCOTUS.

So how does one summarize Garland’s judicial philosophy.  I would say first that he is not right of center, but left of center.  He certainly does not sound like an Originalist, which raises a very important question about Originalism itself.  Carrie Severino has brought this question to the forefront  in a blog entitled “What Is a Moderate Interpretation of a Text, Anyway?” in National Review Online, March 18, 2016, quoting Justice Scalia: “What is a ‘moderate’ interpretation of the text? Halfway between what it really means and what you’d like it to mean?”  Originalism has no necessary relationship to modern conservatism, but it touches conservatism because conservatives like to “conserve” what they believe is best for the nation, in this case, the principles underlying the Constitution, which are embodied in the words themselves in their historical context.  They believe those words gave us timeless principles that ought to continue to be applied.  In that sense, Judge Garland is simply not a conservative and would not bring any aspect of Originalism to the court if confirmed.

Finally, for those Christians who might be curious as to how Judge Garland would treat religious liberty, I have nothing to offer.  Judge Garland has not been involved in any significant cases involving issues like that—or abortion rights cases.  But unless I miss my guess, he would likely view both religious liberty and abortion much the same as his liberal associates.  No “left of center” justice is prone to go against the grain on those issues, though he would be more likely to deviate from more liberal justices on religious liberty issues.  The case law itself is just not well-developed yet.

 

 

39 thoughts on “Merrick Garland, Stealth Nominee or True Moderate?”

  1. “but it touches conservatism because conservatives like to “conserve” what they believe is best for the nation, in this case, the principles underlying the Constitution, which are embodied in the words themselves in their historical context.”

    The description of conservatives would also pertain to many liberals as well. Who does not want to conserve what is best for the nation?

    As for the second part, even Scalia did not always follow the underlying principle that the Constitution should be interpreted according to their historical context (I would argue that it is difficult if not impossible to be perfectly precise in finding the exact historical context), as he was at best an inconsistent originalist, sometimes even an activist judge.

    Some have referred to Garland as center-right, especially in CJ matters. Whatever he is, we can assume that the GOP will continue to obstruct his nomination, as that point was made quite clearly by Senator McConnell merely hours after news of Scalia’s death became public. The GOP should remember that elections have consequences, even elections over three years ago. At some point, the GOP is going to have to stop being the party of Nobama and actually work on constructive policies that advance the nation.

    Sometimes the Republicans seem to forget that the Democrats have won four out the last six presidential elections (five times out of six the Democratic candidate won the popular vote). The GOP should be grateful President Obama did not nominate the left version of Robert Bork. I assume that the temptation was there but the president chose to take the high road.

    1. 1. I was not referring to liberals on this nomination. Liberals generally want to interpret the Constitution in way that deviates from the original underlying principles (Woodrow Wilson made this explicit, Roosevelt sanctioned it, Johnson liked it, etc. and liberal justices were more than willing simply to ignore constitutional principles of the first 100 years of the Republic, starting around 1937).
      2. Let’s see some consistent case law from Scalia that would make him “activist.” Not there. Yes, it is sometimes difficult to discover the original context and meaning, but not as difficult as one might want to believe. There is plenty of evidence as to intent on most issues.
      3. Your attempt to blame Republicans for obstruction is ironic, as Democrats have been doing it for some time. But even so, so what? The Constitution gives the Senate the authority to confirm or not, and it is a political decision, not a legal decision. Their job is to decide whether they should confirm a justice based on considerations that are inherently political, as the Founders obviously intended, or else we could just bypass that body.
      4. President Obama is by no means taking the high road. This is pure political calculation, which he has the authority to do. But the Senate can play that game too, as I mentioned above, and it too has authority.

  2. “Your attempt to blame Republicans for obstruction is ironic, as Democrats have been doing it for some time. But even so, so what? The Constitution gives the Senate the authority to confirm or not, and it is a political decision, not a legal decision. Their job is to decide whether they should confirm a justice based on considerations that are inherently political, as the Founders obviously intended, or else we could just bypass that body.”

    Your analysis is far from even-handed. It shows the problems when one’s bias clouds one’s judgment.

    Seriously, who else should be blamed for obstructing since the death of Scalia if not Republicans?

    The issue is NOT with the Senate’s authority to confirm or not confirm a candidate. Obviously, you are misinformed if that is what you think. Rather, the issue was with McConnell’s insinuation that the president not even bother to offer a candidate. McConnell said, “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”

    In other words, it does not matter to McConnell whom the president nominates. McConnell has already made up his mind. Of course he may have the right to do that, but that is not responsible leadership. Then again, unlike you I am not an ideologue. Responsible leadership is important to me, and I care more about principles than party.

    Fact is, the people DID have a voice in the selection of their next Supreme Court justice when they reelected Barack Obama. The Senate should do its job and consider the candidate fairly. Considering the many GOP seats in the Senate up in 2016, the GOP had better stop obstructing, or the GOP can kiss its Senate majority goodbye.

    It would be ironic if the GOP’s obstructionist tactics actually helped confirm a candidate more to the left than the centrist Garland. Imagine if the Senate rejects him, and then the American people, tired of GOP obstruction, elects Clinton/Sanders (at this point, a Republican winning the presidency would be an upset) and flips the Senate flips Democratic. In that scenario, Scalia would likely be replaced by a much more liberal judge than Garland.

    Unless the GOP starts acting more like a bona-fide party and less like children AT a party, expect fewer conservative judges and more liberal ones in years to come. The demographics do not look good for the GOP, especially in swing states. If the GOP wants to start winning presidential elections, it is going to have to do better than Donald Trump and Ted Cruz, both lousy candidates whose extremism is turning off the swing voters the GOP needs to win.

    1. I predict a Republican president in 2020 or 2024, this primary process will see the death of the Republican party as we know it, there will be a realignment, my prediction is that the Democrats will be the party of choice for Trump supporters in the future.

      Unless the Republicans don’t steal the nomination from Trump, in which case it’ll be a new party that rises up to be conservative and the Republican party will die.

      1. Republicans are going to have to become more moderate and purge the party of its extremist, misogynistic, intolerant, anarchic, Tea Party elements if it is going to have a chance to take the White House anytime soon. If it doesn’t, it will become like the Whigs.

        I assume that the Kochs are going to use their blood money and with other billionaires build a party of their own, attracting the fiscal conservative wing. If that happens, where the poorly educated, prejudiced, Trumpists will go is anyone’s guess. For one thing, they will not find a welcome home in the Democratic party.

      2. “If that happens, where the poorly educated, prejudiced, Trumpists will go is anyone’s guess. For one thing, they will not find a welcome home in the Democratic party.”

        For one thing you just unnecessarily and falsely slandered alot of people. I hope you realize that, but I guess that you do and just don’t care since you have history of doing so with any group of people you don’t like or agree with. I am sure some of Trump’s supporters are prejudiced and he certainly polls well among the less-educated, but his support base is much more expansive than that. But Hillary Clinton voters are not perfect either. I am sure Black Lives Matter and Black Panther etc. will be in the tank for her. Racism and prejudice in not a one way white

        And the Democrats will most certainly welcome any Trump voters who want to come to them. I have seen article after article from Democrat strategists talking about the ways they can use to compete with Trump for those same low-educated blue collar whites you claim would be unwelcome.

    2. 1. Interesting: Analysis far from even-handed? OK, all I can say is you just don’t get it.
      2. One thing I will give you: McConnell did overreact and I see nothing wrong with listening to Garland in hearings. But McConnell said nothing more than the Democrats have said earlier–and did. And the Senate has every authority to wait.
      3. This is still about a political act: The senate has no obligation to confirm any nominee, unless you are willing to change that a rule for both parties in all situations. You might not like it, but you cannot deny that there is absolutely no obligation.
      4. Comments on Cruz and Trump were gratuitous (even though I don’t like Trump): They are not the issue.

      1. “But McConnell said nothing more than the Democrats have said earlier–and did. And the Senate has every authority to wait.”

        Really? You are not referring to the so-called Biden Rule, are you, lol? There is no similar precedent, at least in recent history. With his strident and disrespectful comments (frequent since 2008), McConnell broke new ground in terms of modern history.

        “This is still about a political act: The senate has no obligation to confirm any nominee, unless you are willing to change that a rule for both parties in all situations.”

        Now where did I say that President Obama’s candidate has to be confirmed by the Senate? There you go again with your straw-manning. I thought my comment that “The issue is NOT with the Senate’s authority to confirm or not confirm a candidate” was crystal clear (guess not to you at least).

        I said that McConnell’s comments, said before Justice Scalia’s corpse was even cold, represented a lack of responsible leadership. I am not sure you got my point, so hear me out.

        You are right, McConnell has the choice to do nothing, but there may be a price to pay for it. The American people, as represented by the popular vote, have rejected five out of the last six GOP presidential candidates. That trend will likely continue, as both Trump and Cruz are poor (yes, lousy) candidates who will not likely attract the swing voters needed to win the White House. Cruz is only marginally less awful than Trump (Frank Gaffney as one of Cruz’s foreign policy advisors?!! )

        I am not sure you got my point that if the Democrats win the White House (likely), and the Senate rejects Garland, and the Senate flips Democratic (even money), the new president might nominate a more liberal candidate than Garland. If that happens, the blame should go not to the Democrats, but to the GOP senators who foolishly rejected a more moderate candidate when it was proposed.

        Garland might be the lesser of two potential evils. Do you get that?

      2. Man you must hate the Republican Party. ALL parties have people who “hang on” to their coattails for whatever reason. Unfortunately, we don’ t have the luxury to choose a pure party in line with our particular views. I don’t like some aspects of the Republican Party but I do like it better than the Democratic Party. We don’t live in an ideal world.

        And this business about the Kochs and their “blood money.” Where are you getting that? I would not be so quick to blame them. It is up to you here to tell me why you characterize them that way. I need some examples that are also verified as true, and not just an interpretation of what they have contributed to.

        One more point. I am a little suspicious about the way you characterize members of the Party–misogynist, intolerant. What exactly are you referring to–that is, how are you defining your labels? You might be calling people by some pejorative terms just because they disagree with you. And your definitions might be a little too broad.

  3. I think republicans are making the wrong move trying to block Garland as the next justice. Based on your convincing analysis he may very well be less moderate than portrayed by the media, but as you also said also he is better than someone Hilary would likely propose. If the primary season keeps moving forward as it has been, odds are we are going to see a Hilary v Trump match up which will likely put Clinton in the White House. And if Trump wins who knows what kind of justice he would nominate…

    1. Republicans have every authority and I would argue they are correct in waiting. Garland is no conservative–he is at best a little left of center. IF they need to they will confirm him before the next president takes office.

      1. What would be the possibility that the Democrats, after a successful November election, would reject Garland as being too conservative and then decide to wait until January?

        That would be something to see.

  4. Everyone, especially Democrats, needs to take a deep breath and relax. The blocking of Presidential appointees has been going on since… gasp… 1789 and… what do you know! …President George Washington was the first President to rail against Senate “obstructionism”. What is going on today is hardly new (and hardly childish, or else the entire history of the United States Senate has been one of “children at a party”).
    See link for more details on Washington and the first Senate.
    http://www.senate.gov/artandhistory/history/minute/The_Senate_Irritates_President_George_Washington.htm

    P.S. – While I have at times been angered at Democrat treatment of GOP picks (Alito’s confirmation hearings for example) I have always been smart enough to realize that their opposition was rooted in politics and ideology and I never once ever thought of Senate Democrats as being childish. Partisan yes, but partisan does not equal childish.

    A couple days ago, I found this interesting article discussing Alexander Hamilton’s take on POTUS vs SOTUS on court picks.
    http://nypost.com/2016/03/17/by-hamiltons-rules-on-supreme-picks-the-senates-right-and-obamas-wrong/

    Now, I have a question specifically for Jeff Adams if he wouldn’t mind answering it.

    As Dr. Clauson has pointed out, Judge Garland is most likely to go along with liberals on rulings pertaining to abortion. As you claim to be a truly consistent pro-lifer, your criticism of the Senate in this instance seems, at least to me, to be a bit self-defeating on the abortion issue. If, by some upset, as you say, the GOP wins, then chances are much higher (though of course never certain) of a Republican nomination, even a Trump one, being less sympathetic to abortion that Garland is likely to be. Since I would think, then, that you would want the Senate to delay in the hopes of replacing Scalia with a like minded justice at least on abortion, if on nothing else, I would like you to please explain why your criticism of the Senate holding the line for political reasons (and I am sure abortion is one of them) should not indicate that your pro-life rhetoric is more talk than substance? Please understand, I am not trying to be accusatory and I am NOT actually saying you are more talk than substance. This was simply a question that surfaced in my mind and I wanted to give you a chance to answer in case others have had a similar thought to my own.

  5. Why do I refer to the Koch’s money as “blood money”? Two reasons:

    1. The Koch family leveraged the inheritance accumulated by their father, Fred. And how did Fred make HIS money? Through his business relationship with Joseph Stalin. Fred then took the profits from his Soviet dealings and turned them into a minor fortune, which his sons have turned into a major fortune.

    I consider Stalin a tyrant and a murderer, one of the worst despots in history. Considering the human suffering that resulted from Stalin’s planned economy, I consider any profits made as “blood money.”

    2. Although Koch Industries has received some praise from the EPA, the fact remains that the company has been a major polluter and has broken the law numerous times. Some have died due to the company’s negligence. The total damage will be hard to estimate, of course, but few companies have thumbed their nose at the EPA more than Kock Industries.

    I consider profits made by the willful decision to engage in irresponsible (indeed, deadly) behavior as “blood money.”

    You are free to disagree with my assessment (I know Cedarville receives monetary donations from Koch “think tanks,” so you may not really be, um, FREE, to disagree), but my value system at least does not put profits over people. My use of the phrase “blood money” was made after careful consideration (I did not just throw that phrase around).

    Hope this helps. Thank you for your comment.

    1. I believe you ought to read a more objective account of the Kochs, perhaps Daniel Schulman, Sons of Wichita: How the Koch Brothers Became America’s Most Powerful and Private Dynasty. Grand Central (2014). As you will see, Fred Koch spent only a very short time in Stalinist Russia (about 6 months or a little more) and reports that he did not like what he saw. In addition, the EPA issues arose as a result of two other Koch brothers’ attempts to get back at Charles and David Koch (family a bit dysfunctional for a while). Nothing came of it.

      Hope that clears up some facts.

      1. I believe you failed to challenge the factual points that I made.

        The amount of time Fred Koch spent in the USSR is irrelevant. Six months, six years, whatever. He may not have liked his time in the USSR, but the fact remains that that was the place where he made his first fortune. The money he took back to the US was around $500,000; in today’s money it would amount to several million dollars.

        The EPA violations are a matter of public record. The deaths are as well.

        Even if I read the Koch biography, it would not change the facts that I cited, right?

        If I have time, yes, I will read it. I always like learning new things, but that book would have to take a back seat to other, more important books, as well as to my own research. Thanks, though, for the reco.

      2. OK, I will elaborate. Fred Koch was disillusioned with Soviet Russia and that is why he left. It was an “eye opener” for him. I wish many liberals of the 1930s who thought Soviet Russia and Stalin were the coming of the millennium had also been disillusioned. Some were, but many never gave up their love affair with it–or with Stalin. At least Fred had that good sense.

        The EPA ALLEGATIONS are a matter of public record–of course–but that fails to link them to actual unethical behavior you want to accuse the Koch’s of. Even if there were fines, we all know that thousands of individuals are fined for infractions they don’t even know about and (I argue) should not be infractions at all.

        Finally, deaths? You have now lapsed into interpretation, creating what you believe is a causal effect between what the Koch’s do in their businesses and the deaths of people. This is a common tactic of people who want to blame companies for everything that happens. And of course the courts (juries especially) are fond of using the system to give big awards on flimsy causal grounds or no causal links. It’s a lottery for many. The mantra for lawyers is to “go for the deep ,pockets” since juries (and judges) will tend to help the person who was injured or died. Now the burden is on you to prove a causal link with much greater strength than simply asserting that “deaths occurred.” It is time to stop demonizing every company that emits any kind of so-called pollutant or that emits something not even really a pollutant. This has been going on for 30 years or more in the media, the courts and among left-leaning organizations.

  6. This whole debate about judicial appointments and politics vs. duty or obligation is just simply amusing.

    Anyone who knows anything about the history of the United States knows that the President and the Senate have fought over Presidential nominees since 1789. There are several instances where George Washington was upset with the Senate over appointments. If we accept the idea that somehow the GOP Senate is behaving like children it would therefore necessitate categorizing the majority of the Senate’s history as a “child’s party”.

    And this notion that somehow the election/reelection of Obama or that the Democrats have won the popular vote for 5 of the past 6 elections has any bearing on judicial nominations is poppycock. The Presidential election popular vote record is meaningless when it comes to whether the GOP should do nothing or something with the Garland nomination. Unlike the President, senators are not answerable to the nation as a whole but to their State constituencies. And in 2014 (more recent than 2012, I might point out) those constituencies gave the Republicans the majority. In 2016, they could very well give it back to the Democrats, but until that time but until then the Senate in well within its rights to do, or not do, as it pleases and any argument over who won or lost elections is totally irrelevant. By that logic then the Democrat House and Senate election in 2006 should have deferred to whatever Bush wanted because he had won the last (2004) election. Good luck if you could find any Democrats that would have argued that.

    Lastly, by the text of the Constitution, let’s dispel one myth that seems to have been ignored. That is the notion that Obama has a duty or obligation to name a replacement for Scalia in the first place: False. Article II: Section 2 gives the President the power to nominate and with the advise and consent of the Senate, appoint, justices (among other positions). It says he has the power to nominate, not that he has a duty or obligation to do so.

    So when Republicans in the Senate say that a SCOTUS nomination should wait until after the election, they are not, contrary to media narrative, saying that Obama is less a President than any other. They recognize Obama has the power to nominate, but they are saying that he should choose not to exercise that power, but let the people decide with their Presidential vote if they want a Republican or another Democrat to make the appointment. So the debate being framed by Obama and the Democrats is a false one, namely that Obama is fulfilling his constitutional obligation and that the Republican Senate is ignoring theirs.

    Constitutionally, nothing could be farther from the truth.

    Now, to a couple of Mr. Adams’s latest utterances:

    “Republicans are going to have to become more moderate and purge the party of its extremist, misogynistic, intolerant, anarchic, Tea Party elements if it is going to have a chance to take the White House anytime soon. If it doesn’t, it will become like the Whigs.”

    Like Republicans should ever take advice from you. I remember once you listed several past Republican Presidential nominees you considered honorable (comparing them to recent ones which you don’t) but yet I noticed in another post where you talked about elections you voted third party in were the elections the men you claimed you thought honorable were running in. Why should ANY Republican listen to you when even if they followed your advice, chances are you still would not vote for them?

    “What would be the possibility that the Democrats, after a successful November election, would reject Garland as being too conservative and then decide to wait until January?”

    It could happen, but I doubt it. By that time, numerous Democrats will likely have publicly given their support for Garland and will be on record as supporting his confirmation. For them to suddenly reverse themselves and reject him would be highly unlikely.

    “Garland might be the lesser of two potential evils. Do you get that?”

    No, Garland might be the lesser of one known evil (him) and another potential evil. But as to the point you were making, of course Republicans realize that. The problem is that right now, he is the ONLY evil actually known so until that potentially greater evil actually emerges, this argument is at best merely theoretical.

    But it brings up an interesting question to put to you (Jeff Adams):

    You have been critical of the Republicans for not even considering Garland. Let’s say that you are Senator Jeff Adams. What would your approach be? No right or wrong answer here (though depending on how you answer, I might have a further question or two).

    1. Why are you responding to questions I asked of another poster?

      I was not talking to you. I was talking to Mr. Clauson. He is more than capable of answering my questions (if he wants to–he may choose not to answer them).

      Do you get that?

      1. “Why are you responding to questions I asked of another poster?” “I was not talking to you. I was talking to Mr. Clauson.”

        So what? There is no rule that keeps me from joining any conversation on this blog. And you do it all the time yourself so deal with it. I have not the patience to go back through all the times you have deigned to weigh in on conversations you were not originally part of. I’ve said it before and will say it again, on a blog, anything anyone says is open to comment by anyone else. You don’t make the rules on this blog. So get over yourself already.

        But now I will repeat my question:
        “You have been critical of the Republicans for not even considering Garland. Let’s say that you are Senator Jeff Adams. What would your approach be? No right or wrong answer here (though depending on how you answer, I might have a further question or two).”

  7. Yes, Nathan, I was wrong to say merely that Trump’s followers are “the poorly educated” and “prejudiced.” I forgot about the fact that there are some educated supporters. An educated supporter of Trump I would consider merely as anti-American, as a supporter of evil. They know better. They are making not an emotional choice, but rather a reasoned choice for authoritarianism.

    I consider it anti-American to throw out millions of people and build a wall, at great financial and human expense. I say that because forced migrations usually kill people. If Trump gets his wishes, people will die. And, no, I do not believe that illegal immigrants’ lives are worth less than those of citizens.

    I consider it anti-American to propose using our forces to round up 11 or so million people, period. What about legal immigrants or bona-fide American citizens who could get caught up in such a police state action? Has Trump even thought about the harm his plan could do to citizens?

    It is anti-American to curtail First Amendment rights to protest, even if it means voicing criticisms of leaders.

    It is anti-American to subject journalists to restraint, merely for doing their jobs. Trump has actually talked about the right to sue journalists who write what he does not like. This attitude represents opposition to the First Amendment.

    It is also anti-American to support, and joke about, violence against non-violent protesters. Yes, the states-righters who abuses protestors during the civil rights movement acted in opposition to American ideals.

    I consider it anti-American to limit the religious freedom of non-Christians, and to prevent Muslim citizens from reentering their nation merely because of their religion.

    I consider it repugnant, at the least, to want to kill the families of terrorists, which he has advocated. Is the committing of war crimes “American” to some? Certainly, but not to me. America is at its worst when it has turned a blind eye to war crimes and crimes against humanity.

    Trump is no conservative. He is an authoritarian. Those who vote for him at any time are an embarrassment to our nation. They make a mockery of the patriots who died so that we could vote. We cannot thank them personally, obviously, but at least we could use our vote responsibly, and not elect someone who looks more and more like a fascist everyday.

    Perhaps this is too strong for you. I might remind you that I have been railing about Trump for months now and have never wavered from my point about him being the nominee. You should be concerned about the possibility that I may be right.

  8. Nathan,

    “So what? There is no rule that keeps me from joining any conversation on this blog. And you do it all the time yourself so deal with it. I have not the patience to go back through all the times you have deigned to weigh in on conversations you were not originally part of. I’ve said it before and will say it again, on a blog, anything anyone says is open to comment by anyone else. You don’t make the rules on this blog. So get over yourself already.”

    No, I do not answer questions posed directly to other people. But you have often done that. Perhaps you are projecting your own boorish behavior on to me.

    But now I will repeat my question:
    “You have been critical of the Republicans for not even considering Garland. Let’s say that you are Senator Jeff Adams. What would your approach be? No right or wrong answer here (though depending on how you answer, I might have a further question or two).”

    First, you act rudely, and now you want me to answer your question? Seriously?

    1. Hello Guys on this Palm Sunday:
      This is for Jeff and Nathan. Look, I thought I had simply given some useful information on the nominee and then assessed him from my admittedly conservative perspective. Jeff doesn’t like it, for reasons I don’t really get, since I didn’t say anything that anyone hasn’t also said in print–Left and Right–but with different assessments. The fact is that from a conservative standpoint, Garland is Left of Center. And the Senate has the absolute right to refuse anything it wants in relation to the nominee (a position also taken by Joe Biden in 1993 and Harry Reid more recently). While I don’t think there is any harm in listening to the nominee, I am not losing any sleep over a refusal to confirm him.

      He might be confirmed yet, if Hillary looks to be the winner in November. I am also not a Trump supporter, but I don’t think bringing him into the discussion was really relevant. And the screed against the Republican Party was just a gratuitous attack. Moreover, so was the attack on the Koch’s.

      Of course I don’t try to censor any of that, but I do wish you would stick more to the particular subject. Nathan and Jeff, I guess I would counsel a more civil discussion, but again, I am not a censor. I just think it would be more Christian to be more irenic. I have lapsed here too at times.

    2. “First, you act rudely, and now you want me to answer your question? Seriously?”

      I have not acted any differently than you have. I don’t suppose you ever considered that simply answering my question in the first place rather than choosing to treat me like I child with your dismissive attitude of “I wasn’t talking to you” would likely mean we would be having a substantive exchange instead of accusing each other of rudeness? Was my original post to which y rude to you? No it wasn’t. You began this latest dust up yourself.

      “No, I do not answer questions posed directly to other people. But you have often done that. Perhaps you are projecting your own boorish behavior on to me.”

      Like I said, its a blog, and it is most certainly not true that you do not comment on posts not meant for you. Again, I could provide examples if I wanted to waste the time to do it but that would not be productive in bringing us back to the topic at hand.

      And on that note, Dr. Clauson wrote: “Of course I don’t try to censor any of that, but I do wish you would stick more to the particular subject. Nathan and Jeff, I guess I would counsel a more civil discussion, but again, I am not a censor. I just think it would be more Christian to be more irenic. I have lapsed here too at times.”

      Civil is perfectly fine with me and I would love to stick to the subject. Like I pointed out earlier, if my original question, which was most certainly pertaining to the subject (and which I still hope Jeff answers so we CAN have a civil discussion on it), had been answered rather than met with a “I wasn’t talking to you” dismissal, we wouldn’t be dealing with this right now. I am not absolving myself of my own part in it, I am just pointing out it is what it is.

  9. I gues the question is should we support him in your opinion? You pointed out that he might be the best option we have compared to someone Clinton might add but is he actually someone this country needs on the Supreme Court in your opinion? It will be interesting to see the follow up of this process.

  10. Dr. Clauson, if Obama nominated someone right of center would you support the Senate going back on their words and confirming the nomination? What if a far right wing judge?

    I think it’s completely messed up that we’re having this discussion. I think the Senate should hear out any nominee, and yes if they don’t like that candidate they can deny them. But to say no matter who the candidate is there won’t be a hearing is a political game.

    I also believe it’s truly a perversion of the judicial system when you can label a judge as right wing or left wing.

    1. I actually think the Senate should be honest and say they don’t want the nominee because he is too liberal/non-originalist. And that is legitimate–more below.

      Yes, it is a political game, played by all parties, Obama and the Senate. But the stakes are pretty high.

      Yes, you can label judges as such. It’s just a fact that usually a “left-wing” judge will not be an originalist and will interpret the Constitution as a “living document” (meaning it means what he needs it to mean to change the course of law to suit his ideology). It’s also just a fact that usually a “right-wing” judge will be an originalist (these days) and will interpret the Constitution in way that supports that view and its implications. It’s all in which ideology one hews toward. There are possible exceptions–one could be a pure originalist and come down sometimes looking liberal and sometimes conservative. But that’s utopian to expect it to happen. We are dealing with human beings as they are, not what we wish they were.

      1. “I actually think the Senate should be honest and say they don’t want the nominee because he is too liberal/non-originalist. And that is legitimate–more below.”

        If you’re right about their motivation then I wish they would say that. I could completely support them using their influence as leverage to get the Justice they want. I think that’s a little hard line for my taste, but it’s respectable. I don’t respect at all what they say they’re doing.

  11. I wish that there was more information on cases involving religious liberty and abortion that Judge Merrick Garland has been involved in. I guess now we have to wait and see where he stands on these issues; even if we already have a pretty good guess.

  12. “The EPA ALLEGATIONS are a matter of public record–of course–but that fails to link them to actual unethical behavior you want to accuse the Koch’s of. Even if there were fines, we all know that thousands of individuals are fined for infractions they don’t even know about and (I argue) should not be infractions at all.”

    Your rationalization of Koch Industries reminds me of Hogan’s Heroes and the lovable but incompetent Sgt. Schultz, with his “I know nothing! I see nothing! I hear nothing!”

    Charles Koch is Chairman & CEO, and David is Executive VP. They own more than 4/5 of the company stock. As the leaders of the company that they privately own, they are ultimately responsible. It is THEIR company. They have owned it since the late 1960’s and have created the culture. If they do not know what is going on, and I find that hard to believe, they should give up control and find someone who does. Your defense makes little sense, I am afraid.

    I didn’t just throw out the death accusation on the basis of mere conjecture. The company was found negligent in the deaths of two in Texas back in the late 1990’s.

    As for the Kochs’ record regarding pollution, it is so voluminous that only an outright shill would deny it. The record consists of dozens of infractions going back decades. Even employees–many, worldwide, not just one whistleblower– admit it.
    Are we to assume that all of these former employees are involved in a conspiracy to hurt Koch Industries? I know you Libertarians like conspiracy theories. Should I assume this is another one?

    I did not even discuss Koch Industries’ shady dealing with Iran (basically, Koch Industries used a foreign subsidiary to flout a U.S. trade ban barring American companies from selling materials to Iran). Why make a long post longer? What kind of patriotic American company seeks to make money by trading with a terrorist nation? Koch Industries, apparently.

    One final point: I mean you no harm. Indeed, you have my pity. I know you have to defend the Kochs and all of their malfeasance. Cedarville University receives money from them, which it uses to help turn its students into conservative if not Libertarian mouthpieces instead of critical thinkers. Because of this you must deny, deny, deny, even it makes you look like a shill, which it does, unfortunately.

    I do not deny that Koch Industries does some good, but I wish you would be fair-minded and see what I obviously to all of those who do not have an ax to grind.

    Thank you for your response.

    1. Look, no individual is morally perfect and therefore no organization (made up of individuals) is perfect. The question is actually several ones: (1) was Koch legally responsible for anything before the EPA?; (2) even if legally not responsible, are they morally responsible?; (3) have there been any deaths (you said it) linked causally to any of their actions or non-actions?; (4) is Koch on balance worse in comparison to another organization that would do the same things they do or do you simply not like what they do at all? (5) if you don’t like what they do,. then what do you think a company should do in extractive industries–nothing, that is, don’t engage in that activity, or minimal activity that is likely heavily regulated by government? (6) if heavily regulated or not engaged in at all, does that mean that many people (in your opinion) would end up dying because of the loss of cheap energy sources or are you not concerned with that possibility in the existential now, preferring to let the long run take care of it? (7) where do you get information about “shady dealings with Iran”(could toy be engaging in a bit of conspiracy theory?)

      Now three statements:
      1. I am NOT a shill for any company, but I am not a utopian either. It is not a choice between pollution and no pollution, it is a choice between pollution unabated (which no one wants) and the solutions to it that are least cost and greatest benefit (taking into account all costs and benefits, including “psychic”costs and benefits.
      2. Non-pollution is not an option, and perhaps you didn’t intend to imply that, but if it is not an option, we still must produce energy that helps improve the lives of millions in the world and at as low a cost as possible for their sake. If you want to go back to the Middle Ages, I suggest you live that way, and that is fine, but that you don’t try to force others to live that way. Now Koch comes into this discussion because they are involved in the kind of activity I have been discussing and what they do is good work for the flourishing of humans (real people).
      3. Reasonable levels of pollution are acceptable (and have always been around, even locally among primitive peoples–think wood and coal smoke) for no other reason than that right now, we can’t do better without incurring huge and unsustainable costs that cost real lives. Eventually that may change as costs of substitutes decline or technology enables more efficient use of fossil fuels. But until then, we live in a fool’s paradise to think we can all just give it up and go to alternative (and costly) sources.

      You have in conclusion not supported your assertion with credible evidence that Koch is “evil.” It is not perfect, but if you hold any company or individual to that standard, you will be condemning everyone.

      I almost forgot, “found negligent in the death of two in Texas back in 1990.” What does that prove. Anyone can be found negligent for nearly anything–accidental is what it is about. I am a lawyer and I know tort law. And I know that literally anyone could unintentionally cause the death of another. And it wasnt “the company.” It was some individual or individuals who did something wrong in the eyes of the law in that situation. If a company is held negligent it isn’t because “the company”did it, bit because in law the company is held liable (usually because it has the “deep pockets”). The company heads may not even realize that anything is wrong. And finally, in modern tort law, juries are pretty quick to hold big companies liable, not necessarily because there was some real causation but because the jury wants to help the plaintiff. So we don’t know any of that. Does that make that person evil? It isn’t pleasant, but talk about consigning to the outer darkness. You have seemingly done that here.

      1. “2. Non-pollution is not an option, and perhaps you didn’t intend to imply that, but if it is not an option, we still must produce energy that helps improve the lives of millions in the world and at as low a cost as possible for their sake. If you want to go back to the Middle Ages, I suggest you live that way, and that is fine, but that you don’t try to force others to live that way. Now Koch comes into this discussion because they are involved in the kind of activity I have been discussing and what they do is good work for the flourishing of humans (real people).”

        Non-pollution might not be an option, but the history of Koch Industries is one of intentionally flouting law in pursuit not of the “flourishing of humans” but of profit and self-aggrandizement. That you do not see this suggests to me that we hold different values. You are OK with willful pollution as long as some good comes from it.

        You are a moral relativist ( i.e. the ends justifies the means). I am not.

        The fact remains that Fred Koch made his fortune by choosing to deal with an evil individual (funny how he condemned Stalin after he made his fortune, lol), and that his sons have no problem dealing with Iran, a terrorist nation and a sworn enemy of the United States. What kind of conservative would be OK with such actions, I don’t know.

        Did it really take Fred Koch years to realize that he was dealing with a communist thug? I find that hard to believe.

        Considering your total disdain for social programs, even those that do work relatively well, and the modern welfare state, I think YOU would be the one who wants to go back to the Middle Ages, not me, lol.

        “3. Reasonable levels of pollution are acceptable (and have always been around, even locally among primitive peoples–think wood and coal smoke) for no other reason than that right now, we can’t do better without incurring huge and unsustainable costs that cost real lives. Eventually that may change as costs of substitutes decline or technology enables more efficient use of fossil fuels. But until then, we live in a fool’s paradise to think we can all just give it up and go to alternative (and costly) sources.”

        I have been clear here regarding my stance on green energy. I do NOT think it practical to “give it[fossil fuels] all up,” and no reasonable reader would conclude that from my comments.

        Considering the demonstrable effects of fossil fuels (not so much natural gas, which I tend to support, actually, because of its relative lack of emissions), the sooner the planet moves toward green energy, the better for all of us. That to me is responsible stewardship. I see no reason why a good Christian should be a shill for the fossil fuel industries, considering the demonstrable harmful effects (climate change, disease, etc.) that come from that industry.

        My values are pro-life, and by that I mean far more than just opposing the abortion of pre-born children. I know we might disagree on this issue as well.

        The most reasonable approach should be an aggressive expansion of green energy and stricter emissions standards, as well as taxes that provide a disincentive to use more than a reasonable share of fossil fuels (as well as incentives to use less).

        Carbon taxes, despite their knee-jerk condemnation by the conservative media, represent a truly capitalist solution. The way it is now, we all cover the costs that come from an excessive use of fossil fuels. That sounds like collectivism to me.

        Of course the Kochs would oppose all of these. No wonder–they probably like having others cover the costs from their business. They are capitalists when it comes to the profits, but collectivists when it comes to the costs: the quintessential having one’s cake and eating it too!

        “You have in conclusion not supported your assertion with credible evidence that Koch is “evil.” It is not perfect, but if you hold any company or individual to that standard, you will be condemning everyone.”

        Well, that is your opinion, and you are welcome to it.

        No, I will not be “condemning everyone.” By all definitions Koch Industries is one of the worst violators, period. No one is perfect, but few have caused as much pollution as Koch Industries. That is not an opinion, by the way.

        Thank you for your comments.

      2. Wow this all escalated quickly, Dr. Clauson I thank you for trying to reign things in, I think you might have gotten caught up in it again though.

        I do want to say, when it comes to energy there is a high cost in any option. In solar or wind the energy company pays the cost, in coal the community pays the cost. Nuclear power is very tragic to me though. The highest cost there is not in terms of pollution, or direct costs, it’s a political cost. If we as a nation put in the time and money to update our nuclear plants, continue to research in nuclear energy, and replace coal plants with nuclear plants. It would result in cheaper, safer energy and more jobs. But there is an irrational fear of nuclear energy, which makes it too costly. I’m greatly saddened by this.

  13. Very informative article and comments. I’ve read a lot of discussion about this topic in the past month and have heard all kinds of opinions about what the best course of action would be for conservative republicans. What I’ve concluded is that conservatives could either approve Garland as a hedge against the risk of having a worse option nominated by a democratic president, or fight the nomination in hopes that a conservative president nominates a better option. There are pros and cons to each strategy and I’m interested to see how it plays out.

  14. If I were a republican voting whether or not to approve of Garland as the next justice, I would approve it. The upcoming election seems almost set on Trump/ Clinton, and presently, Clinton is winning in every major poll by quite a margin.

    http://www.realclearpolitics.com/epolls/2016/president/us/general_election_trump_vs_clinton-5491.html

    While Trump has his dedicated support, it seems that most Americans fear his instability and lack of experience concerning foreign policy, and rightly so. With a Clinton win, this would almost certainly mean a much more liberal justice, and I agree with Jeff that after a successful November election, Democrats could very well reject Garland as being too conservative and then decide to wait until January. To me, it is clear to accept Garland, an admittedly fair proposal from Obama.

  15. This article is very interesting. I have been following this topic and hearing your perspective was fairly enlightening. I’m going to be following Judge Merrick Garland with interest.

  16. According to what I have read, Garland would never be the representative of the Republican party because he is not a conservative. He might claim to be maybe, but when push comes to shove, he would not be our strongest choice.

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